H.B. NO.














relating to evidence.





     SECTION 1.  The legislature finds that the physician-patient relationship is essential to the practice of medicine and the proper diagnosis and treatment of illness and disease.  A good physician-patient relationship facilitates the transfer of information between the physician and patient, enhances accuracy of the diagnosis, and increases the patient's knowledge about the patient's diagnosis and treatment.  A patient should feel comfortable to confide in the physician and in return a physician should be honest and provide reassurance and comfort to the patient.

     Historically, physicians have been advised, and sometimes are even required, to stay silent when an unanticipated medical care event occurs that results in pain and suffering for, or even death, of the patient.  In absence of any laws that shield physicians, an apology in which the physician admits fault may be considered an admission against interest and may be admissible in a malpractice proceeding as evidence of acknowledgment of fault.  However, medical standards require that health care providers disclose to patients any unanticipated event, including details of, reasons for, and any consequences of the unanticipated event.  This type of conversation can be difficult to conduct with a patient without expressing sympathy or regret for unanticipated and sometimes negative outcomes.

     The physician-patient relationship is threatened by the rising number of medical malpractice lawsuits and increasing medical malpractice insurance premiums.  Physician apology laws enable candid communication between a physician and the physician's patient following an unanticipated medical care outcome, and appear to reduce overall medical malpractice liability costs by reducing the number of lawsuits and consequent attorneys' fees and claim costs.  Studies show that patients are far less likely to sue when provided a full explanation and apology.

     In response, states have passed legislation to create apology exemptions.  Massachusetts was the first state to adopt a physician apology law to protect physicians from statements they might make to their patients regarding complications their patients may have suffered while under their care.  More recently enacted apology laws specifically declare that a statement of apology by a physician to a patient is inadmissible as evidence of liability in court.

     In Hawaii, rule 409.5, Hawaii Rules of Evidence, allows individuals and entities to express sympathy and condolence concerning the consequences of an event in which the declarant was a participant without the expression being used to establish liability.  However, this rule does not specifically protect communication that amounts to an apology, which could be admissible as evidence to establish liability.  Under rule 104, Hawaii Rules of Evidence, the court is authorized to determine whether the utterance amounts to an expression of sympathy or an acknowledgement of fault.  Furthermore, rule 409.5, Hawaii Rules of Evidence, generally applies to individuals and entities and fails to specifically address the communications with health care providers regarding the consequences of an unanticipated medical care outcome involving pain, suffering, or death.

     The purpose of this Act is to remove the obstacles that may discourage physicians from apologizing by establishing that statements of apology made by a health care provider concerning an unanticipated medical care outcome are inadmissible to prove liability for any claim growing out of the event.

     SECTION 2.  Section 626-1, Hawaii Revised Statutes, is amended by adding a new rule to article IV to be appropriately designated and to read as follows:

     "Rule     Inadmissibility of unanticipated medical outcomes; health care provider apologies.  Evidence of statements, affirmations, gestures, or conduct that expresses apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider concerning the consequences of an unanticipated outcome of medical care resulting in discomfort, pain, suffering, injury, or death is not admissible to prove liability for any claim growing out of the event."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.










Report Title:

Evidence; Apology; Health Care Providers



Establishes a new rule of evidence that statements or conduct that expresses apology that are made by a health care provider concerning an unanticipated medical care outcome are inadmissible to prove liability for any claim growing out of the event.




The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.